Chapter 11 – Imminent Danger, Fatality, Catastrophe, and Emergency Response

I. Imminent Danger Situations.

A. General.

1. Definition of Imminent Danger.
   Section 12-51-13 of the Law defines imminent danger as “…any conditions or practices in any place of employment which are such that a danger exists which could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act.”
2. Conditions of Imminent Danger.
   The following conditions must be present in order for a hazard to be considered an imminent danger:
   • Death or serious harm must be threatened; AND
   • It must be reasonably likely that a serious accident could occur immediately OR, if not immediately, then before abatement would otherwise be implemented.
     
     NOTE: For a health hazard, exposure to the toxic substance or other hazard must cause harm to such a degree as to shorten life or be immediately dangerous to life and health (IDLH) or cause substantial reduction in physical or mental efficiency or health, even though the resulting harm may not manifest itself immediately.

B. Pre-Inspection Procedures.

1. Imminent Danger Report Received by the Field.
   1. After the Branch Manager receives a report of imminent danger, he or she will evaluate the inspection requirements and assign a CSHO to conduct the inspection.
   2. Every effort will be made to conduct the imminent danger inspection on the same day that the report is received. In any case, the inspection will be conducted no later than the day after the report is received.
   3. When an immediate inspection cannot be made, the Branch Manager will contact the employer immediately, obtain as many pertinent details as possible about the situation, and attempt to have any employee(s) affected by the imminent danger voluntarily removed, if necessary.
      • A record of what steps, if any, the employer intends to take in order to eliminate the danger will be included in the case file.
      • This notification is considered an advance notice of inspection to be handled in accordance with the advance notice procedures described below.
2. Advance Notice.
   1. §12-51-6, HAR authorizes advance notice of an inspection of potential imminent danger situations in order to encourage employers to eliminate dangerous conditions as quickly as possible.
   2. Where an immediate inspection cannot be made after HIOSH is alerted to an imminent danger condition and advance notice will speed the elimination of the hazard, the CSHO, at the direction of the Branch Manager, will give notice of an impending inspection to the employer.
   3. Where advance notice of an inspection is given to an employer, it shall also be given to the authorized employee representative, if present. If the inspection is in response to a formal Section 8(b) complaint, the complainant will be informed of the inspection unless this will cause a delay in speeding the elimination of the hazard.

C. Imminent Danger Inspection Procedures.

All alleged imminent danger situations brought to the attention of or discovered by CSHOs while conducting any inspection will be inspected immediately. Additional inspection activity will take place only after the imminent danger condition has been resolved.

1. Scope of Inspection.
   CSHOs may consider expanding the scope of an imminent danger inspection based on additional hazards discovered or brought to their attention during the inspection.
2. Procedures for Inspection.
   1. Every imminent danger inspection will be conducted as expeditiously as possible.
   2. CSHOs will offer the employer and employee representatives the opportunity to participate in the worksite inspection, unless the immediacy of the hazard makes it impractical to delay the inspection in order to afford time to reach the area of the alleged imminent danger.
   3. As soon as reasonably practicable after discovery of existing conditions or practices constituting an imminent danger, the employer shall be informed of such hazards. The employer shall be asked to notify affected employees and to remove them from exposure to the imminent danger hazard. The employer should be encouraged to voluntarily take appropriate abatement measures to promptly eliminate the danger.

D. Elimination of the Imminent Danger.

1. Voluntary Elimination of the Imminent Danger.
   1. How to Voluntarily Eliminate a Hazard.
      • Voluntary elimination of the hazard has been accomplished when the employer:
        • Immediately removes affected employees from the danger area;
        • Immediately removes or abates the hazardous condition; and
        • Gives satisfactory assurance that the dangerous condition will remain abated before permitting employees to work in the area.
      • Satisfactory assurance can be evidenced by:
        • After removing the affected employees, immediate corrective action is initiated, designed to bring the dangerous condition, practice, means or method of operation, or process into compliance, which, when completed, would permanently eliminate the dangerous condition; or
        • A good faith representation by the employer that permanent corrective action will be taken as soon as possible, and that affected employees will not be permitted to work in the area of the imminent danger until the condition is permanently corrected; or
        • A good faith representation by the employer that permanent corrective action will be instituted as soon as possible. Where personal protective equipment can eliminate the imminent danger, such equipment will be issued and its use strictly enforced until the condition is permanently corrected.
          
          NOTE: Through onsite observations, CSHOs shall ensure that any/all representations from the employer that an imminent danger has been abated are accurate.
   2. Where a Hazard is Voluntarily Eliminated.
      If an employer voluntarily and completely eliminates the imminent danger without unreasonable delay:
      • No imminent danger legal proceeding shall be instituted;
      • The Notice of an Alleged Imminent Danger (OSHA-8), does not need to be completed;
      • An appropriate citation(s) and notice(s) of penalty will be proposed for issuance with an appropriate notation on the Violation (OSHA-1B) to document corrective actions; and
      • CSHOs will inform the affected employees or their authorized representative(s) that, although an imminent danger had existed, danger has been eliminated. They will also be informed of any steps taken by the employer to eliminate the hazardous condition.
2. Refusal to Eliminate an Imminent Danger.
   1. If the employer does not or cannot voluntarily eliminate the hazard or remove affected employees from the exposure and the danger is immediate, CSHOs will immediately consult with the Branch Manager or designee and obtain permission to post a Notice of an Alleged Imminent Danger (OSHA-8).
   2. Branch Managers will then contact the Administrator and determine whether to consult with the DAG to obtain a Temporary Restraining Order (TRO) as per §396-4(d)(4), HRS.
      
      NOTE: The division has no authority to order the closing of a worksite or to order affected employees to leave the area of the imminent danger or the workplace. However, CSHOs can place “Danger” tags on movable equipment.
   3. CSHOs will notify affected employees and the employee representative that a Notice of an Alleged Imminent Danger (OSHA-8) has been posted and will advise them of the Section 8(e) discrimination protections under the HIOSH Law. Employees will be advised that they have the right to refuse to perform work in the area where the imminent danger exists.
   4. The Branch Manager and the Administrator, in consultation with the DAG, will assess the situation and, if warranted, make arrangements for the expedited initiation of court action, or instruct the CSHO to remove the Notice of an Alleged Imminent Danger (OSHA-8).
   5. When Harm Will Occur Before Abatement is Required.
      1. If CSHOs have clear evidence that harm will occur before abatement is required (i.e., before a final order of the Board in a contested case or before a TRO can be obtained), they will confer with the Branch Manager or Administrator to determine a course of action.
         
         NOTE: In some cases, the evidence may not support the finding of an imminent danger at the time of the physical inspection, but rather after further evaluation of the case file or presence of additional evidence.
      2. As appropriate, an imminent danger notice may be posted at the time citations are delivered or even after the notice of contest is filed.

II. Fatality and Catastrophe Investigations.

A. Definitions.

1. Fatality.
   An employee death resulting from a work-related incident or exposure; in general, from an accident or an illness caused by or related to a workplace hazard.
2. Catastrophe.
   The hospitalization of three or more employees resulting from a work-related incident or exposure; in general, from an accident or an illness caused by a workplace hazard.
   
   NOTE: HIOSH may use the OSHA Memorandum entitled, “Interim Enforcement Procedures for New Reporting Requirements under 29 C.F.R. 1904.39”, dated December 24, 2014, or unless superseded by future agency-approved correspondence, for help in determining the inspection priority of a catastrophe.
3. Hospitalization.
   In-patient hospitalization is the formal admission to the inpatient service of a hospital or clinic for care or treatment. It excludes admission for diagnostic testing or observation only.
4. Property Damage in Excess of $25,000
   See HIOSH amendment to 29 CFR 1904.9(a)
5. Incident Requiring a Coordinated Response.
   An incident involving multiple fatalities, extensive injuries, massive toxic exposures, extensive property damage, or one that presents potential employee injury and generates widespread media interest.
   
   NOTE: 29CFR Part 1904 has new requirements for reporting work-related fatalities, hospitalizations, amputations or losses of an eye. The new rule, which also updates the list of employers partially exempt from OSHA record-keeping requirements, went into effect on January 1, 2015, for workplaces under federal OSHA jurisdiction, and on [Insert date] for workplaces under HIOSH jurisdiction.

B. Initial Report.

1. The Fatality/Catastrophe Report Form (OSHA-36) is a pre-inspection form that must be completed for all fatalities or catastrophes unless knowledge of the event occurs during the course of an inspection at the establishment involved. The purpose of the FAT/CAT (OSHA-36) is to provide HIOSH with enough information to determine whether or not to investigate the event. It is also used as a research tool by OSHA and other agencies.
2. If, after the initial report, the Branch becomes aware of information that affects the decision to investigate, the FAT/CAT (OSHA-36) should be updated. If the additional information does not affect the decision to investigate, or the investigation has been initiated or completed, the FAT/CAT (OSHA-36) need not be updated. After updating the FAT/CAT (OSHA-36), it should be resubmitted to the National Office.
3. See additional details on completing the OSHA-36 in Paragraph II.I. of this chapter, Recording and Tracking for Fatality/Catastrophe Inspections.

C. Investigation Procedures.

1. All fatalities and catastrophes will be thoroughly investigated in an attempt to determine the cause of the event, whether a violation of HIOSH safety and health standards, regulations, or the general duty standard occurred, and any effect the violation had on the accident. HIOSH Guideline on Conducting Accident Investigations, dated December 27, 2011, provides guidance on efficiently conducting fatality and other accident investigations.
2. The guideline establishes three categories, which differ in investigative scope, procedures, and post-citation actions:
   1. Fatality Accident Investigations:
      1. Fatality of one or more employees; and
      2. Cause is likely to be related to condition in the workplace, e.g., fall from height, electrical contact, struck by materials/equipment/machinery
   2. Accident Investigation:
      1. Not a fatality — hospitalization or property damage in excess of $25,000
      2. Related to fatal four in construction (Fall from elevation; Electrical; Struck-by (crane, load, flying or falling object); caught in or between (trench collapse, LOTO; or
      3. Potentially catastrophic incident, such as chemical release or spill incident, e.g. ammonia, chlorine, sulfuric acid, hydrogen sulfide, or
      4. Related to any other Emphasis program, local or national; e.g. PSM, Combustible dust, Hexavalent chromium, etc.
   3. Fatality Inquiry:
      Incidents which are not usually preventable by employer:
      • Traffic accident, where vehicle did not have any maintenance or safety issues;
      • Homicide, other than late night retail, or healthcare, social service industry; or
      • Heart attack or stroke – with no known exposure to chemicals or heat.
3. The investigation should be initiated as soon as possible after receiving an initial report of the incident, ideally within one working day, by an appropriately trained and experienced compliance officer assigned by the Branch Manager. The Branch Manager determines the scope of the fatality/ catastrophe investigation. All investigations must be completed in an expeditious manner. See Guideline on Conducting Accident Investigations, dated December 27, 2011.
4. Inspections following fatalities or catastrophes should include videotaping as a method of documentation and gathering evidence when appropriate. The use of photography is also encouraged in documenting and evidence gathering.
5. As in all inspections, under no circumstances should HIOSH personnel conducting fatality/catastrophe investigations be unprotected against a hazard encountered during the course of an investigation. HIOSH personnel must use appropriate personal protective equipment and take all necessary precautions to avoid and/or prevent occupational exposure to potential hazards that may be encountered.

D. Interview Procedures.

1. Identify and Interview Persons.
   1. Identify and interview all persons with firsthand knowledge of the incident, including first responders, police officers, medical responders, and management, as early as possible in the investigation. The sooner a witness is interviewed, the more accurate and candid the witness statement will be.
   2. If an employee representative is actively involved in the inspection, he or she can serve as a valuable resource by assisting in identifying employees who might have information relevant to the investigation.
   3. Conduct employee interviews privately, outside the presence of the employer. Employees are not required to inform their employer that they provided a statement to HIOSH.
   4. When interviewing:
      • Properly document the contact information of all parties because follow-up interviews with a witness are sometimes necessary.
      • When appropriate, reduce interviews to writing and have the witness sign the document. Transcribe video- and audio-taped interviews and have the witness sign the transcription.
      • Read the statement to the witness and attempt to obtain agreement. Note any witnesses’ refusal to sign or initial his/her statement.
      • Ask the interviewee to initial any changes or corrections made to his/her statement.
      • Advise interviewee of HIOSH whistleblower protections.
   5. See Chapter 3, Inspection Procedures, for additional information on conducting interviews.
2. Informer’s Privilege.
   1. The informer’s privilege allows the government to withhold the identity of individuals who provide information about the violation of laws, including HIOSH rules and regulations. The identity of witnesses will remain confidential to the extent possible. CSHOs should inform each witness that disclosure of his/her identity may be necessary in connection with enforcement or court actions.
   2. The informer’s privilege and §396-8(f), HRS also protects the contents of statements to the extent that disclosure would reveal the witness’ identity. When the contents of a statement will not disclose the identity of the informant (i.e., statements that do not reveal the witness’ job title, work area, job duties, or other information that would tend to reveal the individual’s identity), the provision does not apply and such statements may be released.
   3. Inform each witness that his/her interview statements may be released if he or she authorizes such a release or if he or she voluntarily discloses the statement to others, resulting in a waiver of the privilege.
   4. Inform witnesses in a tactful and nonthreatening manner that making a false statement to a CSHO during the course of an investigation could be a criminal offense. Making a false statement, upon conviction, is punishable by up to $11,000 or six months in jail, or both.

E. Investigation Documentation.

Document all fatality and catastrophe investigations thoroughly.

1. Personal Data – Victim.
   Potential items to be documented include: Name; Address; Email address; Telephone; Age; Sex; Nationality; Job Title; Date of Employment; Time in Position; Job being done at the time of the incident; Training for job being performed at time of the incident; Employee deceased/injured; Nature of injury – fracture, amputation, etc.; and Prognosis of injured employee.
2. Incident Data.
   Potential items to be documented include: How and why did the incident occur; the physical layout of the worksite; sketches/ drawings; measurements; video/audio/photos to identify sources, and whether the accident was work-related.
3. Autopsy Report/Report from First Responders
   Where possible, reports from first responders such as fire, police, and EMTs should be obtained, as well as autopsy reports from the medical examiner. However, in no case shall the investigation be delayed while awaiting such reports. Where necessary subpoenas should be issued. Such reports are to be treated as personal health information and must be protected from disclosure accordingly.
4. Equipment or Process Involved.
   Potential items to be documented include: Equipment type; Manufacturer; Model; Manufacturer’s instructions; Kind of process; Condition; Misuse; Maintenance program; Equipment inspection (logs, reports); Warning devices (detectors); Tasks performed; How often equipment is used; Energy sources and disconnecting means identified; and Supervision or instruction provided to employees involved in the accident.
5. Witness Statements.
   Potential witnesses include: the Public; Fellow employees; Management; Emergency responders (e.g., police department, fire department); and Medical personnel (e.g., medical examiner).
6. Safety and Health Program.
   Potential questions include:
   • Does the employer have a safety and/or health program?
   • Does the program address the type of hazard that resulted in the fatality/catastrophe?
   • How are the elements of the program specifically implemented at the worksite?
7. Multi-Employer Worksite
   Describe the contractual and in practice relationships of the employer with the other employers involved with the work being performed at the worksite.
8. Records Request.
   Potential records include: Disciplinary Records; Training Records; and Next of Kin information. For accident investigations involving fatalities, subpoenas should be issued even if the employer appears to be cooperating with any records request.
   
   NOTE: Next of kin information should be gathered as soon as possible to ensure that condolence letters can be sent in a timely manner.

F. Potential Criminal Penalties in Fatality and Catastrophe Cases.

1. Criminal Penalties.
   1. Section 396-10(g) of the Law provides criminal penalties for an employer who is convicted of having willfully violated a HIOSH standard, rule, citation, or order when the violation results in the death of an employee. Section 10(g) could apply to violations of the general duty standard, especially if a citation was previously issued under the general duty standard, unlike section 17(e) of the OSHA Act. Hawaii added “citations” to the list of what must be willfully violated, and did not restrict the violation to only those promulgated pursuant to Section 6 of the OSH Act. When there are violations of a HIOSH standard, rule, citation, or order, or a violation of the general duty standard, criminal provisions relating to false statements and obstruction of justice may also be relevant.
   2. The circumstances surrounding all occupationally-related fatalities will be evaluated to determine whether the fatality was caused by a willful violation of a standard, thus creating the basis for a possible criminal referral. The evidence obtained during a fatality investigation is of paramount importance and must be carefully gathered and considered.
   3. Early in the investigation, the Branch Manager or designee, in consultation with the investigator, should make an initial determination as to whether there is potential for a criminal violation. The decision will be based on consideration of the following:
      • A fatality has occurred.
      • There is evidence that a HIOSH standard has been violated and that the violation contributed to the death.
      • There is reason to believe that the employer was aware of the requirements of the standard and knew it was in violation of the standard, or that the employer was plainly indifferent to employee safety.
      • If the Administrator agrees with the Branch Manager’s assessment of the case, the Administrator will request that a DAG be assigned to assist with the case.
      • When there is a potential criminal referral to the County Prosecutor in a case, it is essential that the Administrator and/or the Branch Manager involve the DAG’s Office in the early stages of the investigation during the evidence gathering process.
2. Procedures for Criminal Referral.
   If the DAG assigned to the case believes that evidence is sufficient for a criminal referral to the County Prosecutor, he/she will make the referral and direct HIOSH on what information is to be included.

G. Families of Victims.

1. Contacting Family Members.
   Family members of employees involved in fatal or catastrophic occupational accidents or illnesses shall be contacted early in the investigation and given the opportunity to discuss the circumstances of the accident or illness. OSHA staff contacting family members must exercise tact and good judgment in their discussions.
   See CPL 02-00-153, Communicating OSHA Fatality Inspection Procedures to a Victim’s Family, dated April 17, 2012, and adopted by HIOSH on October 1, 2012.
2. Information Letter.
   The standard information letter, to be signed by the Director, will normally be sent to the individual(s) listed as the emergency contact on the victim’s employment records (if available) and/or the otherwise determined next of kin within 5 working days of determining the victim’s identity and verifying the proper address where communications should be sent.
   
   NOTE: In some circumstances, it may not be appropriate to follow these exact procedures; i.e., in the case of a small business, the owner or supervisor may be a relative of the victim. Modify the form letter to take any special circumstances into account or do not send the letter, as appropriate.
3. Transmittal of draft letter for Director’s signature.
   The draft next-of-kin letter is to be transmitted for the director’s signature via memo. The memo is to include a brief two to three sentence of the incident that resulted in the fatality.
4. Interviewing the Family.
   1. When taking a statement from families of the victim(s), explain that the interview will be handled following the same procedures as those in effect for witness interviews. Sensitivity and professionalism are required during these interviews. Carefully evaluate the information received and attempt to corroborate it during the investigation.
   2. Maintain follow-up contact with key family members or other contact persons so that these parties can be kept up-to-date on the status of the investigation. Provide family members or their legal representatives with a copy of all citations, subsequent settlement agreements or Hawaii Labor Relations Board (HLRB) decisions as these are issued, or as soon thereafter as possible. However, such information will only be provided to family members after it has been provided to the employer.
      The next of kin may also be advised that §396-11(j), HRS, provides for the election of party status by affected employee representatives (next-of-kin) during any HIOSH proceedings before the Hawaii Labor Relations Board
   3. The releasable portions of the case file will not be made available to family members until after the contest period has passed and no contest has been filed, provided there is no pending civil case (see §396-14, HRS). If a contest is filed, the case file will not be made available until after the litigation is completed. Additionally, if a criminal referral is under consideration or has been made, the case file may not be released to the family. Notify the family of these policies and inform them that this is necessary so that any potential litigation is not compromised.
5. Post-Inspection Communications [With Next of Kin]
   After the inspection, HIOSH will make every effort to contact the next of kin via telephone to explain the findings, address any questions and give the family an opportunity to provide input. Depending on the case, HIOSH may issue a press release. If a press release is planned, HIOSH will make every attempt to notify the family by telephone before the information is released to the public. HIOSH will also provide a copy of the press release to the family.

H. Public Information Policy.

HIOSH’s public information policy regarding response to fatalities and catastrophes is to explain HIOSH presence to the news media. It is not to issue periodic updates on the progress of the investigation. The Administrator will normally handle response to media inquiries in accordance with current DLIR policy.

I. Recording and Tracking for Fatality/Catastrophe Investigations.

1. Fatality/Catastrophe Report Form (OSHA-36).
   The FAT/CAT (OSHA-36) is a pre-inspection form that must be completed for all fatalities and catastrophes unless knowledge of the event occurs during the course of an inspection at the establishment involved. Processing of the FAT/CAT (OSHA-36) shall be as follows:
   1. The Branch will complete and enter into OIS a FAT/CAT (OSHA-36) for all fatalities and catastrophes as soon as possible after learning of the event. As much information as is known at the time of the initial report should be provided; however, all items on the FAT/CAT (OSHA-36) need not be completed at the time of this initial report. Wherever possible, the age of the victim(s) should be provided, because this information is used for research by OSHA and other agencies.
   2. If additional information relating to the event becomes available that affects the decision to investigate, the FAT/CAT (OSHA-36) is to be updated.
   3. In addition, the Administrator will contact the OSHA Area Director to ensure prompt notification of the National Office of major events, such as those likely to generate significant public or congressional interest.
2. Investigation Summary Report (OSHA-170).
   1. The Investigation (OSHA-170) is used to summarize the results of investigations of all events that involve fatalities, catastrophes, amputations, hospitalizations of two or more days, have generated significant publicity, and/or have resulted in significant property damage. An Investigation (OSHA-170) must be opened, logged into OIS, and saved as final as soon as the division becomes aware of a workplace fatality and determines that it is within its jurisdiction, even if most of the data fields are left blank. The information on this form enables OSHA to track fatalities and summarizes circumstances surrounding the event.
      
      NOTE: The two-day hospitalization criterion is a cutoff to preclude completing an Investigation (OSHA-170) for events that may not be serious. There is no relationship between this criterion and the definition of hospitalization in Section II. A. of this chapter, Definitions.
   2. For fatality/catastrophe investigations, the Investigation (OSHA-170) will be:
      • Opened in OIS at the beginning of the investigation and saved as final, even if most of the data fields are left blank, so that HIOSH can track fatality/catastrophe investigations in a close to “real time” fashion.
      • Modified as needed during the investigation to account for updated information.
      • Updated with all data fields completely and accurately completed at the conclusion of the investigation, including a thorough narrative description of the incident.
   3. The Investigation (OSHA-170) narrative should not be a copy of the summary provided on the FAT/CAT (OSHA-36) pre-inspection form. The narrative must comprehensively describe the characteristics of the work-site; the employer and its relationship with other employers, if relevant; the employee task/activity being performed; the related equipment used; and other pertinent information in enough detail to provide a third party reader of the narrative with a mental picture of the fatal incident and the factual circumstances surrounding the event.
   4. In addition, a single fatality or catastrophe event shall normally result in only one fatality [catastrophe] inspection of the deceased employee(s) [injured employees], but one event at a multi-employer work site may possibly lead to one or more unprogrammed-related inspection(s) of other involved employers. The exception to this would occur if an event involves multiple fatalities of workers of two or more employers, resulting in more than one fatality inspection.
      
      EXAMPLE 11-1: A fatality occurs in employer’s facility in August. Both a safety and health inspection are initiated. One Investigation (OSHA-170) should be filed to summarize the results of the inspections that resulted from the August fatality. However, in September, while the employer’s facility is still undergoing the inspections, a second fatality occurs. In this case, a second Investigation (OSHA-170) should be submitted for the second fatality and an additional inspection should be opened.
3. Immigrant Language Questionnaire (IMMLANG).
   HIOSH has elected not to participate in the IMMLANG Questionnaire. However, CSHOs shall indicate on the Inspection (OSHA-1) (N-10, Optional Information Code), whether language issues may have had a role in the fatality by entering “IMMLANG-Y.
4. Related Event Code (REC).
   The Violation (OSHA-1B) provides specific supplemental information documenting hazards and violations. If any item cited is directly related to the occurrence of the fatality or catastrophe, select FAT/CAT Accident. If multiple related event codes apply, the only code that has priority over relation to a fatality/catastrophe is imminent danger.

J. Pre-Citation Review.

1. Because cases involving a fatality may result in civil or criminal enforcement actions, the Branch Manager is responsible for thoroughly and timely reviewing all fatality and catastrophe investigation case files to ensure that the case has been properly developed and documented in accordance with the procedures outlined here.
2. The Branch Manager is responsible for ensuring that an Investigation (OSHA-170) is reported to OIS for each incident (see Paragraph II.I.2. of this chapter, Investigation (OSHA-170)).
3. Review all proposed violation-by-violation penalties in accordance with CPL 02-00-080, Handling of Cases to be Proposed for Violation-by-Violation Penalties, dated October 21, 1990, adopted by HIOSH on October 5, 1994, and revised on March 1, 1996.
4. In addition, the Administrator will also review all cases involving a fatality to ensure that each fatality is thoroughly investigated and processed in accordance with established policy. See Guideline on Conducting Accident Investigations, dated December 27, 2011.

K. Post-Citation Procedures/Abatement Verification.

The regulation governing abatement verification is found at §12-51-22, HAR and HIOSH’s enforcement policies and procedures for this regulation are out-lined in Chapter 7, Post-Citation Procedures and Abatement Verification.

1. Due to the transient nature of many of the worksites where fatalities occur and because the worksite may be destroyed by the catastrophic event, it is frequently impossible to conduct follow-up inspections. In such cases, the Branch Manager should obtain abatement verification from the employer, along with an assurance that appropriate safety and health programs have been implemented to prevent the hazard(s) from recurring.
2. While site closure due to the completion of the cited project is an acceptable method of abatement, it can only be accepted as abatement without certification where a CSHO directly verifies that closure; otherwise, certification by the employer is required. Follow-up inspections need not be conducted if the CSHO has verified abatement during the inspection or if the employer has provided other proof of abatement.
3. Where the worksite continues to exist, HIOSH will normally conduct a follow-up inspection if serious citations have been issued.
4. Include abatement language and safety and health system implementation language in any subsequent settlement agreement.
5. If there is a violation that requires abatement verification, field 22 on the Violation (OSHA1-B) must be completed with the date of abatement verified.
6. If the case is a Severe Violator Enforcement Program (SVEP) case, follow-up inspections will be conducted in accordance with OSHA Instruction CPL 02-00-149, Severe Violator Enforcement Program (SVEP) Directive, June 18, 2010, adopted by HIOSH on May 1, 2016. Follow-up inspections will normally be conducted even if abatement of cited violations have been verified through abatement verification.

L. Audit Procedures

The following procedures will be implemented to evaluate compliance with, and the effectiveness of, fatality/catastrophe investigation procedures:
The Administration and Technical Support Branch (ATS) will incorporate the review and analysis of fatality/catastrophe files into their audit functions and include their findings in the regular audit reports to the Administrator. The review and analysis will address the following:

1. Inspection Findings.
   Ensure that hazards have been appropriately addressed and violations have been properly classified. Also ensure that criminal referrals are made when appropriate.
2. Documentation.
   Ensure that the Investigation (OSHA-170) narrative and data fields and the Violation (OSHA-1B) narrative have been completed accurately and detailed enough to allow for analysis at the national level of the circumstances of fatal incidents.
3. Settlement Terms.
   Ensure that settlement terms are appropriate, including violation reclassification, penalty reductions, and additional abatement language.
4. Abatement Verification.
   Ensure that abatement verification has been obtained.
5. Timely Investigation.
   Ensure that the investigation was promptly investigated in accordance with the Guideline on Conducting Accident Investigations, dated December 27, 2011.
6. Accident trends.
   Determine whether there appears to be any trends or areas requiring additional actions by HIOSH to prevent similar occurrences in the future.

M. Relationship of Fatality and Catastrophe Investigations to Other Programs and Activities.

1. Homeland Security.
   OSHA’s National Emergency Management Plan (NEMP), as contained in HSO 01-00-001, dated December 18, 2003, clarifies the procedures and policies for OSHA’s National Office and Regional Offices during responses to incidents of national significance. Generally, OSHA will provide technical assistance and consultation in coordinating the protection of response worker and recovery worker safety and health, and HIOSH will assist as appropriate. When the President makes an emergency declaration under the Stafford Act, the National Response Framework (NRF) is activated. The NEMP can then be activated by the Assistant Secretary, the Deputy Assistant Secretary, or by request from a Regional Administrator. Whether OSHA will conduct a formal fatality or catastrophe investigation in such a situation will be determined on a case-by-case basis.
2. Severe Violator Enforcement Program.
   1. Inspections that result in citations being issued for at least one of the following are considered Severe Violator Enforcement Program (SVEP) cases:
      • A fatality/catastrophe inspection in which HIOSH finds one or more willful or repeated violations or failure-to-abate notices based on a serious violation related to a death of an employee or three or more hospitalizations;
      • An inspection in which HIOSH finds two or more willful or repeated violations or failure-to-abate notices (or combination of these violations/notices), based on high gravity serious violations related to High-Emphasis Hazard as defined in Section XII. Of OSHA Instruction CPL 02-00-149, Severe Violator Enforcement Program (SVEP), June 18, 2010, and adopted by HIOSH on May 1, 2016.
      • An inspection in which HIOSH finds three or more willful or repeated violations or failure-to-abate notices (or any combination of these violations/notices), based on high gravity serious violations related to hazards due to the potential release of highly hazardous chemical, as defined in the PSM standard; or
      • All egregious (e.g., per-instance citations) enforcement actions.
   2. In such cases, the instructions outlined in CPL 02-00-149, Severe Violator Enforcement Program (SVEP), dated June 18, 2010, adopted by HIOSH on May 1, 2016, shall be followed to ensure that the proper measures are taken regarding classification, coding and treatment of the case.
3. Significant Enforcement Cases.
   a. Significant enforcement cases are defined as inspection cases with initial proposed penalties over $50,000, or which involve novel enforcement cases. An inspection resulting from an employee fatality or a workplace catastrophe may well be a significant enforcement case and, therefore, particularly thorough documentation is necessary to sustain legal sufficiency.
   b. Significant enforcement cases require the approval of the Administrator before the citations are issued. In addition, the OSHA Area Director should be notified in order to be prepared to assist where necessary.
4. Special Emphasis Programs.
   If a fatality or catastrophe investigation arises with respect to an establishment that is also in the current inspection cycle to receive a programmed inspection under any Site-Specific Targeting program (emphasis programs), the investigation and the inspection may be conducted either concurrently or separately.
5. Cooperative Programs.
   If a fatality or catastrophe occurs at a Hawaii Voluntary Protection Program (HVPP), HIOSH Strategic Partnership Program (HSPP) site, or HIOSH’s Safety and Health Achievement Recognition Program (SHARP), the HVPP Manager and/or Consultation and Training Manager is to be notified. When enforcement activity has concluded, the HVPP Manager (for HVPP and HSPP sites) and/or the Consultation and Training Manager (for SHARPs) is to be informed so that the site can be reviewed for program issues.

N. Special Issues Related to Workplace Fatalities.

1. Death by Natural Causes.
   Workplace fatalities caused by natural causes, including heart attacks, must be reported by the employer. The Branch Manager will then decide whether to investigate the incident.
2. Workplace Violence.
   As with heart attacks, fatalities caused by incidents of workplace violence must be reported to HIOSH by the employer. The Branch Manager will determine whether or not the incident will be investigated.
3. Motor Vehicle Accidents.
   1. HIOSH does not have jurisdiction over motor vehicle accidents that occur on public roads or highways, unless the accident involves a state or county employee. Moreover, OSHA does not require reporting injuries including motor vehicles that occur on public roads or highways, unless the incident occurs in a construction work zone.
   2. Although employers who are required to keep records must record vehicle accidents in their OSHA-300 Log of Work-Related Injuries and Illnesses, HIOSH does not normally investigate such accidents. See §1904.39(b)(3) [§12-51.1, HAR]
      The county police usually conduct investigations on public roads or highways and the state Department of Transportation has jurisdiction for transportation safety on public roads or highways. There may be some issue with regard to public sector workers on public roads or highways if the employee files a complaint.

III. Rescue Operations and Emergency Response.

A. HIOSH’s Authority to Direct Rescue Operations.

1. Direction of Rescue Operations.
   HIOSH has no authority to direct rescue operations. These are the responsibility of the employer and/or county or state agencies.
2. Monitoring and Inspecting Working Conditions of Rescue Operations.
   HIOSH may monitor and inspect working conditions of covered employees engaged in rescue operations to ensure compliance with standards that protect rescuers, and to provide technical assistance where appropriate.

B. Voluntary Rescue Operations Performed by Employees.

HIOSH recognizes that an employee may choose to place himself/herself at risk to save the life of another person. The following provides guidance on HIOSH citation policy toward employers whose employees perform, or attempt to perform, rescues of individuals in life-threatening danger.

1. Imminent Danger.
   Section 1903.14(f) provides that no citation may be issued to an employer because of a rescue activity undertaken by an employee of that employer with respect to an individual in imminent danger [i.e., the existence of any condition or practice that could reasonably be expected to cause death or serious physical harm before such condition or practice can be abated] unless:
   1. Such employee is designated or assigned by the employer to have responsibility to perform or assist in rescue operations,
      AND
      the employer fails to provide protection of the safety and health of such employee, including failing to provide appropriate training and rescue equipment;
      or
   2. Such employee is directed by the employer to perform rescue activities in the course of carrying out the employee’s job duties,
      the employer fails to provide protection of the safety and health of such employee, including failing to provide appropriate training and rescue equipment;
      or
   3. Such employee is employed in a workplace that requires the employee to carry out duties that are directly related to a workplace operation where the likelihood of life-threatening accidents is foreseeable, such as operations where employees are located in confined spaces or trenches, handle hazardous waste, respond to emergency situations, perform excavations, or perform construction over water;
      AND
   4. such employee has not been designated or assigned to perform or assist in rescue operations and voluntarily elects to rescue such an individual;
      AND
   5. the employer has failed to instruct employees not designated or assigned to perform or assist in rescue operations of the arrangements for rescue, not to attempt rescue, and of the hazards of attempting rescue without adequate training or equipment.
2. Citation for Voluntary Actions.
   If an employer has trained his or her employees in accordance with §1903.14, no citation will be issued for an employee’s voluntary rescue actions, regardless of whether they are successful.

C. Emergency Response.

1. Role in Emergency Operations.
   While it is HIOSH’s policy to respond as quickly as possible to significant events that may affect the health or safety of employees, the division does not have authority to direct emergency operations.
2. Response to Catastrophic Events (Note: these are not HIOSH Law requirements).
   HIOSH responds to catastrophic events promptly and acts as an active and forceful protector of employee safety and health during the response, cleanup, removal, storage, and investigation phases of these incidents, while maintaining a visible but limited role during the initial response phase.
3. HIOSH’s Role.
   1. For inspections of an ongoing emergency response or post-emergency response operation where there has been a catastrophic event, or where HIOSH is acting under the National Emergency Management Plan (NEMP), the Administrator will determine the overall role that HIOSH will play. See CPL 02-02-073, Inspection Procedures for 29 CFR 1910.120 and 1926.65, Paragraph (q): Emergency Response to Hazardous Substance Releases, dated August 27, 2007, and adopted by HIOSH on December 11, 2007.
   2. During an event that is covered by the NEMP, OSHA has a responsibility and authority to both enforce its regulations and provide technical advice and assistance to the Federal on-scene coordinator. HIOSH may provide assistance as needed.
   3. For details on HIOSH’s response to occupationally-related incidents involving multiple fatalities, extensive injuries, massive toxic exposures, extensive property damage, or potential employee injury that generates widespread media interest. See CPL 02-00-094, OSHA’s Response to Significant Events of Potentially Catastrophic Consequences, dated July 22, 1991, adopted by HIOSH on October 6, 1994.
4. Incidents of National Significance.
   For detailed procedures on how to proceed during incidents of national significance when OSHA has been designated as the primary Federal agency for the coordination of technical assistance and consultation for emergency response and recovery worker health and safety, and the Assistant Secretary has activated the National Emergency Response Plan, see HSO 01-00-001 National Emergency Management Plan, dated December 18, 2003, and the National Response Framework (Worker Safety and Health Support Annex). HIOSH will assist when requested to do so.
   
   Note: These documents apply when activated.